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Summey v. Barker12/3/2002
PUBLISHED
Following the trial court's grant of summary judgment dismissing plaintiff Joseph Patrick Summey's medical malpractice and negligence actions, plaintiff presents two issues on appeal to this Court: (1) Did the trial court erroneously exclude his expert witness' testimony as a discovery sanction for plaintiff's failure to designate his expert in a timely fashion; and (2) Did the trial court err in granting summary judgment in favor of the defendants? We answer both questions, no; and therefore, we uphold the trial court's grant of summary judgment in favor of defendants.
The underlying facts to this appeal tend to show that on 22 October 1996, the Forsyth County Detention Center held plaintiff, a hemophiliac, on charges of illegally removing a child across state lines. The next day, plaintiff's hemophilia condition was evaluated by North Carolina Baptist Hospital and he was released back to the detention center. The following day, after his first appearance in criminal court, plaintiff contends that his nose started to bleed at the courthouse. Apparently, he was taken back to the detention center where a nurse employed by defendant, Correctional Medical Services, attended to him but did not observe any bleeding. Several hours later, at around 11:00 p.m., plaintiff's nose began to bleed rapidly and he was transported to Baptist Hospital for treatment.
From that set of facts, plaintiff brought actions against Forsyth County Sheriff,Ronald Baker, Hartford Insurance Company (Surety for the Sheriff's bond), and Chief Jailer Michael Schweitzer alleging various collective acts of negligence apparently arising from their alleged failure to ensure that he was provided timely medical treatment for his nose bleed. Plaintiff also brought actions against certain medical providers including Correctional Medical Systems and its employees Linda Sides and Joe Maddux alleging collective acts of negligence which appear to amount to claims of medical negligence.
Plaintiff voluntarily dismissed his initial action in June 1999 and re-filed it in October 1999; after which, the trial court entered a Consent Discovery Scheduling Order requiring plaintiff to designate his expert witnesses within 30 days of the conclusion of the appeal on 9 March 2000. Plaintiff should have designated his experts by 3 May 2001, but did not do so until 4 September 2001. Defendants moved for summary judgment alleging there were no genuine issues of material fact and citing plaintiff's failure to designate his experts in accordance with the Consent Discovery Scheduling Order. Plaintiff moved for an extension of time to designate his experts on 4 September 2001. The trial court denied plaintiff's motion and granted defendant's motion for summary judgment.
Discovery Sanctions
"If a party fails to identify an expert witness as ordered, the court shall, upon motion by the moving party, impose an appropriate sanction, which may include dismissal of the action, entry of default against the defendant, or exclusion of the testimony of the expert witness at trial." N.C. Gen. Stat. 1A-1, Rule 26(f1)(2001). The choice of sanctions lies within the court's discretion and will not be overturned on appeal absent a showing of abuse of discretion. See Routh v. Weaver, 67 N.C. App. 426, 429, 313 S.E.2d 793, 795 (1984).
In this case, plaintiff failed to designate his experts by 3 May 2001 as he should have according to the 9 March 2000 Consent Discovery Scheduling Order. In fact, plaintiff did not designate his experts until 4 September 2001, almost four months after the ordered date, and more than one month after defendants notified plaintiff of his noncompliance. Apparently, t
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